Today the Trump Administration formally announced they are ending TPS for El Salvador, and have extended TPS for the last time until September 9, 2019. We are very disappointed in this political decision and call on Congress to act, providing some 200,000 Salvadorians relief.

Those eligible will need to reregister and apply for a new work permit. It is important to see an attorney as soon as possible to assess whether you have any forms of relief available. If you wait until September 2019, it will be too late.

Top Ten Threats to Immigrants,
Their Employers, and Their Families in 2018

Below is our top 10 list of changes that the current administration has put into place, without legislation or regulations, that drastically change the immigration landscape for employers, immigrants, and their families:

5. Supreme Court lifts stay on travel ban for eight countries even where the foreign national has a close family relationship to a U.S. citizen.

4. CBP and consular officers undertake extreme vetting of foreign nationals at ports of entry and at consulates in the name of “Buy American and Hire American.”

3. TPS ends for several countries whose nationals have lived and worked in the United States for many years and whose children were born here.

2. DACA recipients remain in limbo, with an average of 120 recipients’ protection expiring daily and no congressional action in sight.

And, the number one threat to immigrants, their employers, and their families for 2018:

1. The government does not seem to want foreign nationals to become or remain legal.

(Why? Because the government has enacted policies aimed at reducing legal immigration and obstructing those who have the ability to become or remain legal, to include the targeting of visa-violators despite having available remedies under the law, detaining asylum seekers with pending affirmative cases, and refusing to act on TPS or DACA.)

On December 4, 2017, the Supreme Court lifted an injunction on the third travel ban, allowing it to proceed. The Court did not articulate their reasoning for this decision. This does not mean SCOTUS has found the travel ban to be lawful or unlawful, it is merely waiting for the lower courts to issue a ruling. In fact, SCOTUS has asked the 9th and 4th Circuits to issue their decisions quickly due to the potential impact lifting the injunction can have. However, to some, it informs how the Court might rule in the future. The Department of State responded by issuing updated guidance on who is impacted and how.

It explains that certain hopeful immigrants and non-immigrants from Chad, Iran, Libya, Syria, Yemen, and Somalia, in addition to the already banned categories of people from Venezuela and North Korea, will now be unable to obtain a visa. Those with an already granted visa will not have their visa revoked, and those with an already scheduled interview will not have their interview cancelled, though they can still be denied the visa itself. The decision does not impact Legal Permanent Residents or dual citizens from a country not listed. Those with a close relationship, understood to be: immediate relatives of U.S. citizens, legal permanent residents, and lawfully admitted non-immigrants with pre-existing visas, are generally exempt from the travel ban or eligible for a waiver as well. Additionally, the consular officer can decide on a case-by-case basis to waive the travel ban and grant the visa. As of yet, no clear guideline has been released on what the waiver requirements are. There is no application process for the waiver, the consular officer will determine if one qualifies for a waiver based on the vague guidelines: that issuance is in the national interest, the applicant poses no national security or public safety threat to the United States, and denial of the visa would cause undue hardship.

Immigrant and Diversity Visa lottery winners from each of these six countries and North Korea will no longer be eligible for a visa. In addition, B1/B2 visas for Chad, Lybia, and Yemen will no longer be issued, and no non-immigrant visas will be issued for North Korea or Syria. No non-immigrant visas for Iran will be issued, except for F, M, and J visas. Certain government officials and their families from Venezuela continue to be banned.

Both the 9th and 4th Circuits have heard the oral arguments. We now wait for a decision and appeal by the losing side to the Supreme Court. In the interm, many will be impacted by this travel ban. We encourage those impacted to contact organizations such as Dulles Justice (legalhelp@dullesjustice.org).

Late on November 20, 2017, Acting Secretary Elaine Duke announced the end of Temporary Protected Status (TPS) for Haiti. The program will terminate on July 22, 2019, providing nearly 60,0000 Haitians 18 months to sort their affairs in the United States or to try and find another immigration option. Those currently with TPS will need to renew their work authorization in order to legally work through July 2019. The announcement follows then-Secretary John Kelly’s decision to extend TPS for Haiti for only 6 months, indicating the beginning of the end for the program. Though this decision is not unexpected, it is still devastating.

Haiti was designated for TPS following the devastating 2010 earthquake, which killed an estimated 300,000 people and affected 3 million people. The country was already suffering from deadly hurricanes in 2008, and was ill-prepared for such a massive earthquake. Since then, the country has worked hard to recover. However, with poor infrastructure, high unemployment, and a barrage of hurricanes (including Hurricane Sandy in 2012, Hurricane Matthew in 2016, and Hurricane Irma in 2017), recovery has been slow. Compounding those issues is a Cholera outbreak brought by UN forces in 2010 that has infected hundreds of thousands of people and killed over 10,000, and an emerging diphtheria outbreak.

TPS is, by nature, not a permanent status; however it is wrong to prematurely end the program and send people we have chosen to protect to a country still plagued by natural disasters. Simply put, Haiti is not capable of absorbing 60,000 people who have no home, no job, and no resources to go back to. In addition, losing 50,000 people, many of whom have U.S. citizen children, will hurt our economy and communities. They have spent seven years assimilating to this country by opening businesses, buying homes, starting families, going to school, and paying taxes.

With the end of TPS for Sudan, Nicaragua, and now Haiti, we can infer the program will likely be terminated for Honduras after the six month extension, and for El Salvador.

When the White House issued its broad immigration reform proposal, included was a provision that called for imposing numerical quotas on immigration judges. The Administration finds lengthy removal proceedings a constant source of frustration and is attempting to reduce the overall case processing times to speed up deportations. They are considering establishing a baseline number of cases that each immigration judge will be expected to meet, and performance evaluations will reflect a judge’s ability to meet the quota.

While no doubt that this initiative may actually speed up case proceedings, it comes at too high a cost. Establishing a quota undermines the independence federal judges enjoy to handle their cases as they see fit, and it also threatens to weaken due process. That is why the immigration judges union explicitly prevented the inclusion of quotas in their collective bargaining agreement. By imposing a quota judges will find their discretion to grant continuances, consider evidence, reschedule cases, extend hearings to allow witnesses, and perform other judicial activities will be curtailed as meeting the quota takes precedence. This proposal is extremely unwise and probably unconstitutional. The Justice Department, which would implement the quota, has not commented on or responded to questions about the quota proposal.

Judges have pushed back on this idea: “The National Association of Immigration Judges called the move unprecedented and says it will be the “death knell for judicial independence” in courts where immigrants such as political dissidents, women fleeing violence and children plead their cases to stay in the United States.” See more here.

Under pressure from various states, President Trump opted to terminate the DACA program, leaving thousands of DACA recipients in a considerable bind. Although the President had previously promised that DACA recipients would not have to worry about their status, a handful of states threatened to settle the issue in court, which would likely have resulted in a court-ordered termination of the program. Rather than have the Justice Department put forward a lackluster defense of the program, the President has shifted the burden to Congress to legislate a permanent solution for DACA recipients before the program ends in March 2018.

Unlike the 112th to 114th Congresses, which refused to work with President Obama on this issue, the 115th Congress is actually poised to enact a concrete solution. The best approach has been the Dream Act of 2017, which has been introduced in both the Senate (S.1615) and the House of Representatives (H.R.3440). Eligibility is predicated on entering the U.S. as a minor, being present for at least four years, and having no criminal background. For those eligible, a conditional green card is granted for an eight year period. In order to remove the conditions and become a full-fledged permanent resident, the applicant needs to accomplish two years of college, two years of military service, or three years of employment during the conditional period, as well as maintain residence in the U.S. and have no criminal offenses. Successfully removing the conditions will put these individuals on the path to citizenship. The Dream Act is focused, has the most bipartisan support, and would help the most people. Republican proposals, like the RAC (Recognizing America’s Children) Act and the SUCCEED Act, are similar but have more stringent eligibility requirements and reach fewer individuals, as well as having less support. The American Hope Act introduced by Democratic Representative Gutierrez falls at the opposite end of the spectrum, and is the least restrictive and most generous, but lacks bipartisan support. However, the American Immigration Lawyers Association (AILA) has placed its support behind the Dream Act as the most reasonable bipartisan solution.

The most recent congressional hearing on DACA took place on October 3. Senators posed tough questions to DHS and DOJ officials, but received little specific details as to what sort of compromise the Administration would accept. It is difficult to predict which of these bills will eventually gain the support and momentum needed to resolve the long-term legal status of DACA recipients, but there is hope that Congress will act.

At HNI we have participated in efforts to see the DREAM Act 2017 become a reality, from meeting with House Representatives, calling Congress, and supporting AILA’s efforts.

Immigration Newsletter

We are pleased to offer a monthly e-newsletter Haynes Novick Immigration Update, keeping you abreast of immigration-related news and information. Click here view past issues from the archive.

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